Chapter II: Letter I

Dear Sir:--You ask for information calculated to enable you to act understandingly in reference to the international copyright treaty now awaiting the action of the Senate. The subject is an important one, more so, as I think, than is commonly supposed, and being very glad to see that it is now occupying your attention, it will afford me much pleasure to comply, as far as in my power, with your request.

Independently of the principle involved, it seems to me that the course now proposed to be pursued is liable to very grave objection. It is an attempt to substitute the action of the Executive for that of the Legislature, and in a case in which the latter is fully competent to do the work. For almost twenty years, Congress has been besieged with applications on the subject, but without effect. Senate Committees have reported in favor of the measure, but the lower House, composed of the direct representatives of the people, has remained unmoved. In despair of succeeding under any of the ordinary forms of proceeding, its friends have invoked the legislation of the Executive power, and the result is seen in the fact, that the Senate, as a branch of the Executive, is now called upon to sanction a law, in the enactment of which the House of Representatives could not be induced to unite. This may be, and doubtless is, in accordance with the letter of the Constitution, but it is so decidedly in opposition to its spirit that, even were there no other objection, the treaty should be rejected. That, however, is but the smallest of the objections to it.

If the people required such a law, nothing could be more easy than to act in this case as we have done before in similar ones. When we desired to arrange for reciprocity in relation to navigation, we fixed the terms, and declared that all the other nations of the earth might accede to them if they would. No treaty was needed, and we therefore became bound to no one. It was in our power to repeal the law when we chose. So, again, in regard to patents. Foreigners exercise the power of patenting their inventions, but they do so under a law that is liable to repeal at the pleasure of Congress. In both of these cases, the bills underwent public discussion, and the people that were to be subjected to the law, saw, and understood, and amended the bills before they became laws. Contrast, I beg of you, this course of proceeding with the one now proposed to be pursued in reference to one of the largest branches of our internal trade. Finding that no bill that could be prepared could stand the ordeal of public discussion, a treaty has been negotiated, the terms of which seem to be known to none but the negotiators, and that treaty has been sent to your House of Congress, there to be discussed in secret session by a number of gentlemen, most of whom have given little attention to the general principle involved, while not even a single one can be supposed qualified to judge of the practical working of the provisions by whose aid the principle is to be carried out. Once confirmed, the treaty can be changed only with the consent of England. Here we have secrecy in the making of laws, and irrevocability of the law when made; whereas, in all other cases, we have had publicity and revocability. Legislation like that now proposed would seem to be better suited to the monarchies of Europe, than to the republic of the United States. The reason why this extraordinary course has been adopted is, that the people have never required the passage of such a law, and could not be persuaded to sanction it now, were it submitted to them.

The French and English copyright treaty has, as I understand, caused great deterioration in the value of property that had been accumulated in France under the system that had before existed, and such may prove to be the case with the one now under consideration. Should it be so, the deterioration would prove to be fifty times greater in amount than it was in France. Will it do so? No one knows, because those whose interests are to be affected by the law are not permitted to read the law that is to be made. They know well that they have not been consulted, and equally well do they know that the negotiator is not familiar with the trade that is to be regulated, and is liable, therefore, to have given his assent to provisions that will work injury never contemplated by him at the time the treaty had been made. Again, provisions may have been inserted, with a view to prevent injury to the publishers, or to the public, that would be found in practice to be utterly futile, or even to augment the difficulty instead of remedying it. That such result would follow the adoption of some of those whose insertion has been urged, I can positively assert. In this state of things, it would seem to be proper that we should know whether the provisions of the treaty were submitted to the examination of any of the parties interested for or against it, and if so, to whom. So far as I can learn, none of those opposed to it have had any opportunity afforded them of reading the law, and if any advice has been taken, it must have been of those publishers who are in favor of it. Those gentlemen, however, are precisely the persons likely most to profit by the adoption of the principle recognized by the treaty; and the more disadvantageous to others the provisions for carrying that principle into effect, the greater must be the advantage to themselves. They, therefore, can be regarded as little more than the exponents of the wishes of their English friends, who were counselling the British Minister on the one hand, while on the other they were, through their friends here, counselling the American one. A treaty negotiated under such circumstances, would seem little likely to provide for the general interests of the American people.

When, in 1837, the attempt was first made to secure for English authors the privilege of copyright, a large number of them united in an agreement declaring a certain New York house to be "the sole authorized publishers and issuers" of their works. Now, had that house volunteered its advice to the Secretary of State of that day, he would scarcely have regarded it as sufficiently disinterested to be qualified for the office it had undertaken; and yet, if any advice in the present case has been asked, it would seem that it must have been from houses that now look forward to filling the place then occupied by that single one, and that cannot, therefore, be regarded as fitted for the office of counsellors to the Secretary of the present day. Recollect, I am, as is everybody else, entirely in the dark. No one knows who furnished advice as to the treaty, nor does any one know what is to be the law when it shall have been confirmed. Neither can any one tell how the errors that may now be made will be corrected. With a law regularly passed through both Houses of Congress, these difficulties could not arise. They are a natural consequence of this attempt to substitute the will of the Executive for that of the people, as expressed by the House of Representatives, and should, as I think, weigh strongly on the minds of Senators when called to vote upon the treaty. Their constituents have a right to see, and to discuss, the laws that are proposed before those laws are finally made, and whenever it is attempted, as in the present case, to stifle discussion, we may reasonably infer that wrong is about to be done. This is, I believe, the first case in which, on account of the unpopularity of the law proposed, it has been attempted to deprive the popular branch of Congress of its constitutional share in legislation, and if this be sanctioned it is difficult to see what other interests may not be subjected to similar action on the part of the Executive. In all such cases, it is the first step that is most difficult, and before making the one now proposed, you should, as I think, weigh well the importance of the precedent about to be established. No one can hold in greater respect than I do, the honorable gentleman who negotiated this treaty; but in thus attempting to substitute the executive will for legislative action, he seems to me to have made a grave mistake.

In the claim now made in behalf of English authors, there is great apparent justice; but that which is not true, often puts on the appearance of truth. For thousands of years, it seemed so obviously true that the sun revolved around the earth that the fact was not disputed, and yet it came finally to be proved that the earth revolved around the sun. Ricardo's theory of the occupation of the earth, the foundation-stone of his system, had so much apparent truth to recommend it, that it was almost universally adopted, and is now the basis of the whole British politico-economical system; and yet the facts are directly the reverse of what Ricardo had supposed them to be. Such being the case, it might be that, upon a full examination of the subject, we should find that, in admitting the claim of foreign authors, we should be doing injustice and not justice. The English press has, it is true, for many years been engaged in teaching us that we were little better than thieves or pirates; but that press has been so uniformly and unsparingly abusive of us, whenever we have failed to grant all that it has claimed, that its views are entitled to little weight. At home, many of our authors have taken the same side of the question; and the only answer that has ever, to my knowledge, been made, has been, that if we admitted the claims of foreign authors, the prices of books would be raised, and the people would be deprived of their accustomed supplies of cheap literature--as I think, a very weak sort of defense. If nothing better than this can be said, we may as well at once plead guilty to the charge of piracy, and commence a new and more honest course of action. Evil may not be done that good may come of it, nor may we steal an author's brains that our people may be cheaply taught. To admit that the end justifies the means, would be to adopt the line of argument so often used by English speakers, in and out of Parliament, when they defend the poisoning of the Chinese people by means of opium introduced in defiance of their government, because it furnishes revenue to India; or that which teaches that Canada should be retained as a British colony, because of the facility it affords for violation of our laws; or that which would have us regard smugglers, in general, as the great reformers of the age. We stand in need of no such morality as this. We can afford to pay for what we want; but, even were it otherwise, our motto here, and everywhere, should be the old French one: "_Fais ce que doy, advienne que pourra_"--Act justly, and leave the result to Providence. Before acting, however, we should determine on which side justice lies. Unless I am greatly in error, it is not on the side of international copyright. My reasons for this belief will now be given.

The facts or ideas contained in a book constitute its body. The language in which they are conveyed to the reader constitute the clothing of the body. For the first no copyright is allowed. Humboldt spent many years of his life in collecting facts relative to the southern portion of this continent; yet so soon as he gave them to the light they ceased to be his, and became the common property of all mankind. Captain Wilkes and his companions spent several years in exploring the Southern Ocean, and brought from there a vast amount of new facts, all of which became at once common property. Sir John Franklin made numerous expeditions to the North, during which he collected many facts of high importance, for which he had no copyright. So with Park, Burkhard, and others, who lost their lives in the exploration of Africa. Captain McClure has just accomplished the Northwest Passage, yet has he no exclusive right to the publication of the fact. So has it ever been. For thousands of years men like these-- working men, abroad and at home--have been engaged in the collection of facts; and thus there has been accumulated a vast body of them, all of which have become common property, while even the names of most of the men by whom they were collected have passed away. Next to these come the men who have been engaged in the arrangement of facts and in their comparison, with a view to deduce therefrom the laws by which the world is governed, and which constitute science. Copernicus devoted his life to the study of numerous facts, by aid of which he was at length enabled to give to the world a knowledge of the great fact that the earth revolved around the sun; but he had therein, from the moment of its publication, no more property than had the most violent of his opponents., The discovery of other laws occupied the life of Kepler, but he had no property in them. Newton spent many years of his life in the composition of his "Principia," yet in that he had no copyright, except for the mere clothing in which his ideas were placed before the world. The body was common property. So, too, with Bacon and Locke, Leibnitz and Descartes, Franklin, Priestley, and Davy, Quesnay, Turgot, and Adam Smith, Lamarck and Cuvier, and all other men who have aided in carrying science to the point at which it has now arrived. They have had no property in their ideas. If they labored, it was because they had a thirst for knowledge. They could expect no pecuniary reward, nor had they much reason even to hope for fame. New ideas were, necessarily, a subject of controversy; and cases are, even in our time, not uncommon, in which the announcement of an idea at variance with those commonly recorded has tended greatly to the diminution of the enjoyment of life by the man by whom it has been announced. The contemporaries of Harvey could scarcely be made to believe in the circulation of the blood. Mr. Owen might have lived happily in the enjoyment of a large fortune had he not conceived new views of society. These he gave to the world in the form of a book, that led him into controversy which has almost lasted out his life, while the effort to carry his ideas into effect has cost him his fortune. Admit that he had been right, and that the correctness of his views were now fully established, he would have in them no property whatever; nor would his books be now yielding him a shilling, because later writers would be placing them before the world in other and more attractive clothing. So is it with the books of all the men I have named. The copyright of the "Principia" would be worth nothing, as would be the case with all that Franklin wrote on electricity, or Davy on chemistry. Few now read Adam Smith, and still fewer Bacon, Leibnitz, or Descartes. Examine where we may, we shall find that the collectors of the facts and the producers of the ideas which constitute the body of books, have received little or no reward while thus engaged in contributing so largely to the augmentation of the common property of mankind.

For what, then, is copyright given? For the clothing in which the body is produced to the world. Examine Mr. Macaulay's "History of England" and you will find that the body is composed of what is common property. Not only have the facts been recorded by others, but the ideas, too, are derived from the works of men who have labored for the world without receiving, and frequently without the expectation of receiving, any pecuniary compensation for their labors. Mr. Macaulay has read much and carefully, and he has thus been enabled to acquire great skill in arranging and clothing his facts; but the reader of his books will find in them no contribution to positive knowledge. The works of men who make contributions of that kind are necessarily controversial and distasteful to the reader; for which reason they find few readers, and never pay their authors. Turn now to our own authors, Prescott and Bancroft, who have furnished us with historical works of so great excellence, and you will find a state of things precisely similar. They have taken a large quantity of materials out of the common stock, in which you, and I, and all of us have an interest; and those materials they have so reclothed as to render them attractive of purchasers; but this is all they have done. Look to Mr. Webster's works, and you will find it the same. He was a great reader. He studied the Constitution carefully, with a view to understand what were the views of its authors, and those views he reproduced in different and more attractive clothing, and there his work ended. He never pretended, as I think, to furnish the world with any new ideas; and if he had done so, he could have claimed no property in them. Few now read the heavy volumes containing the speeches of Fox and Pitt. They did nothing but reproduce ideas that were common property, and in such clothing as answered the purposes of the moment. Sir Robert Peel did the same. The world would now be just as wise had he never lived, for he made no contribution to the general stock of knowledge. The great work of Chancellor Kent is, to use the words of Judge Story, "but a new combination and arrangement of old materials, in which the skill and judgment of the author in the selection and exposition, and accurate use of those materials, constitute the basis of his reputation, as well as of his copyright." The world at large is the owner of all the facts that have been collected, and of all the ideas that have been deduced from them, and its right in them is precisely the same that the planter has in the bale of cotton that has been raised on his plantation; and the course of proceeding of both has, thus far, been precisely similar; whence I am induced to infer that, in both cases, right has been done. When the planter hands his cotton to the spinner and the weaver, he does not say, "Take this and convert it into cloth, and keep the cloth;" but he does say, "Spin and weave this cotton, and for so doing you shall have such interest in the cloth as will give you a fair compensation for your labor and skill, but, when that shall have been paid, _the cloth will be mine_." This latter is precisely what society, the owner of facts and ideas, says to the author: "Take these raw materials that have been collected, put them together, and clothe them after your own fashion, and for a given time we will agree that nobody else shall present them in the same dress. During that time you may exhibit them for your own profit, but at the end of that period the clothing will become common property, as the body now is. It is to the contributions of your predecessors to our common stock that you are indebted for the power to make your book, and we require you, in your turn, to contribute towards the augmentation of the stock that is to be used by your successors." This is justice, and to grant more than this would be injustice.

Let us turn now, for a moment, to the producers of works of fiction. Sir Walter Scott had carefully studied Scottish and Border history, and thus had filled his mind with facts preserved, and ideas produced, by others, which he reproduced in a different form. He made no contribution to knowledge. So, too, with our own very successful Washington Irving. He drew largely upon the common stock of ideas, and dressed them up in a new, and what has proved to be a most attractive form. So, again, with Mr. Dickens. Read his "Bleak House" and you will find that he has been a most careful observer of men and things, and has thereby been enabled to collect a great number of facts that he has dressed up in different forms, but that is all he has done. He is in the condition of a man who had entered a large garden and collected a variety of the most beautiful flowers growing therein, of which he had made a fine bouquet. The owner of the garden would naturally say to him: "The flowers are mine, but the arrangement is yours. You cannot keep the bouquet, but you may smell it, or show it for your own profit, for an hour or two, but then it must come to me. If you prefer it, I am willing to pay you for your services, giving you a fair compensation for your time and taste." This is exactly what society says to Mr. Dickens, who makes such beautiful literary bouquets. What is right in the individual, cannot be wrong in the mass of individuals of which society is composed. Nevertheless, the author objects to this, insisting that he is owner of the bouquet itself, although he has paid no wages to the man who raised the flowers. Were he asked to do so, he would, as I shall show in another letter, regard it as leading to great injustice.